United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2006 Decided February 16, 2007
No. 05-5379
MOUNT ROYAL JOINT VENTURE ET AL.,
APPELLANTS
v.
DIRK KEMPTHORNE, SECRETARY OF THE INTERIOR, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 99cv02728)
Steven J. Lechner argued the cause for the appellants.
William Perry Pendley was on brief.
John L. Smeltzer, Attorney, United States Department of
Justice, argued the cause for the appellees. Matthew J. Sanders,
Attorney, United States Department of Justice, was on brief.
Before: HENDERSON, ROGERS and GRIFFITH, Circuit Judges.
Opinion filed for the court by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The
appellants, Mount Royal Joint Venture (Mount Royal) and Pete
and Maxine Woods (Woods family), challenge a district court
2
decision upholding certain actions taken by the Department of
the Interior (DOI) in managing federal public lands in the Sweet
Grass Hills of Montana (Hills) under the Federal Land Plan and
Management Act of 1976, as amended, 43 U.S.C. §§ 1701-82
(FLPMA). Specifically, the appellants challenge the Interior’s
Board of Land Appeals’s (IBLA) affirmance of the Board of
Land Management’s (BLM) decision declaring void ab initio the
appellants’ mining claims located within 19,764.74 acres of land
in the Hills segregated from mineral location and entry. They
claim that DOI effected consecutive two-year segregations in
violation of FLPMA. The appellants also challenge as arbitrary
and capricious Public Land Order 7254 (PLO 7254) in which the
DOI Secretary (Secretary) withdrew from mineral location and
entry 19,685 acres of land in the Hills for 20 years. As detailed
below, we hold that the IBLA’s interpretation of FLPMA
section 1714(b) to allow consecutive segregation periods with
different purposes is reasonable, that the IBLA’s conclusion that
the two segregation periods were not identical was not arbitrary
or capricious and that the Secretary’s withdrawal was not
arbitrary or capricious and does not violate the Establishment
Clause of the First Amendment to the United States
Constitution.
I.
We first outline the statutory framework that governs the
withdrawal of public lands. We then set forth the facts that led
to this appeal.
A. Statutory Background
FLPMA provides that “it is the policy of the United States
that . . . the Congress exercise its constitutional authority to
withdraw . . . Federal lands for specified purposes and that
Congress delineate the extent to which the Executive may
3
withdraw lands without legislative action.” 43 U.S.C.
§ 1701(a)(4). A “withdrawal” means:
withholding [of] an area of Federal land from settlement,
sale, location, or entry, under some or all of the general
land laws, for the purpose of limiting activities under
those laws in order to maintain other public values in the
area or reserving the area for a particular public purpose
or program.
Id. § 1702(j).
Section 1714 outlines the withdrawal authority of the
Executive. Section 1714(a) authorizes the Secretary “to make,
modify, extend, or revoke withdrawals but only in accordance
with the provisions and limitations of this section.” Id.
§ 1714(a). Subsection (b) of 1714 sets out the withdrawal
process as follows:
Within thirty days of receipt of an application for
withdrawal, and whenever he proposes a withdrawal on
his own motion, the Secretary shall publish a notice in
the Federal Register stating that the application has been
submitted for filing or the proposal has been made and
the extent to which the land is to be segregated while the
application is being considered by the Secretary. Upon
publication of such notice the land shall be segregated
from the operation of the public land laws to the extent
specified in the notice. The segregative effect of the
application shall terminate upon (a) rejection of the
application by the Secretary, (b) withdrawal of lands by
the Secretary, or (c) the expiration of two years from the
date of the notice.
4
Id. § 1714(b)(1).1 According to FLPMA’s implementing
regulations, a “segregation” is “the removal for a limited period,
subject to valid existing rights, of a specified area of the public
lands from the operation of the public land laws . . . pursuant to
the exercise by the Secretary of regulatory authority to allow for
the orderly administration of the public lands.” 43 C.F.R.
§ 2300.0-5(m).
Subsections (c) and (d) of section 1714 describe the
procedures by which the Secretary implements a withdrawal.
With respect to a land tract aggregating 5,000 acres or greater,
section 1714(c) imposes a 20-year withdrawal maximum and
requires the Secretary to “notify both Houses of Congress of
such a withdrawal no later than its effective date.” Section
1714(c) further states, “[T]he withdrawal shall terminate and
become ineffective at the end of ninety days . . . beginning on
the day notice of such withdrawal has been submitted to the
1
Although the “application for withdrawal” mentioned in
subsection (b)(1) is not otherwise described, the regulations define a
“withdrawal proposal” as a “withdrawal petition approved by the
Secretary,” 43 C.F.R. § 2300.0-5(q), and a “withdrawal petition” as
“a request, originated within the [DOI] and submitted to the Secretary,
to file an application for withdrawal,” id. § 2300.0-5(p) (emphasis
added). Consequently, a “withdrawal petition” approved by the
Secretary becomes a “withdrawal proposal” that results in a
“withdrawal application.” Publication of a “withdrawal proposal” in
the Federal Register initiates a segregation period lasting up to two
years during which period the activities specified in the notice are
restricted. Id. § 2310.2(a). “Before [an] authorized officer can take
action on a withdrawal proposal, a withdrawal application in support
thereof shall be submitted.” Id. § 2310.1-2(b). An application for
withdrawal may be submitted simultaneously with “the making of a
withdrawal proposal,” id., or with a “withdrawal petition,” id.
§ 2310.1-3(c).
5
Senate and the House of Representatives, if the Congress has
adopted a concurrent resolution stating that such House does not
approve the withdrawal.” As we stated in New Mexico v.
Watkins, 969 F.2d 1122, 1136 (D.C. Cir. 1992), “[t]he reporting
requirement is not just a formality. It is instead a fundamental
part of the scheme by which Congress has reserved the right to
disapprove administrative withdrawals.” With respect to a land
tract aggregating fewer than 5,000 acres, subsection (d)
authorizes the Secretary to approve a withdrawal without
congressional notification or approval:
(1) for such period of time as he deems desirable for a
resource use; or
(2) for a period of not more than twenty years for any
other use . . . ; or
(3) for a period of not more than five years to preserve
such tract for a specific use then under consideration by
the Congress.
43 U.S.C. § 1714(d). A “resource use” is “a land use having as
its primary objective the preservation, conservation,
enhancement or development of” any “natural resource . . .
including, but not limited to, mineral, timber, forage, water, fish
or wildlife resources” or “[a]ny resource value” in a particular
land area “including, but not limited to, watershed, power,
scenic, wilderness, clean air or recreational values.” 43 C.F.R.
§ 2300.0-5(g).
B. Factual Background
The United States owns 7,731 surface acres and 19,765
subsurface acres in the Sweet Grass Hills, an area of plains and
volcanic buttes located in Montana near the Canadian border.
The Hills are within the West HiLine planning area, a land tract
in north central Montana encompassing over 11 million acres.
6
Most of the West HiLine planning area is privately owned, with
BLM managing only 626,098 surface acres and 1,328,014
subsurface acres.
In 1988, BLM issued the “West HiLine Resource
Management Plan and Final Environmental Impact Statement”
(West HiLine Plan), a land use plan2 for all BLM-managed
tracts in the West HiLine area. The West HiLine Plan
designated 7,640 surface acres of the Hills as an area of critical
environmental concern (ACEC) and in January 1992, BLM’s
Montana State Director (State Director) issued a Record of
Decision (ROD) adopting the West HiLine Plan for the Hills.
With the ACEC designation, BLM sought “to protect high value
potential habitat for reintroduction of endangered peregrine
falcons; protect areas of traditional religious importance to
Native Americans; and protect seasonally important elk and deer
habitat.” Record of Decision for the Sweet Grass Hills and the
Upper Missouri National Wild and Scenic River of the Final
West HiLine Resource Management Plan and Environmental
Impact Statement 4 (Jan. 1992) (hereinafter 1992 ROD),
reprinted in Joint Appendix (JA) at 211. Nevertheless, “[t]o
ensure the orderly development of locatable mineral resources
while protecting the ACEC values,” id., BLM kept the ACEC
open to mineral location and entry.3
2
Under FLPMA, the Secretary must “develop, maintain, and,
when appropriate, revise land use plans which provide by tracts or
areas for the use of the public lands.” 43 U.S.C. § 1712(a). A
“resource management plan” is “a land use plan as described by the
Federal Land Policy and Management Act.” 43 C.F.R. § 1601.0-5(n).
3
Mineral “location” is “the act or series of acts whereby the
boundaries of [a] claim are marked.” Cole v. Ralph, 252 U.S. 286,
296 (1920). “Mineral entry” refers to “[t]he right of entry on public
7
Pursuant to the ROD’s requirements, Mount Royal and
Manhattan Minerals (USA), Ltd. (Manhattan Minerals) filed a
plan of operations in 1992 (Mount Royal/Manhattan Plan or
Plan) to begin gold mining operations in the Hills. BLM
withheld approval of the Mount Royal/Manhattan Plan until it
completed a second environmental impact statement (EIS)
specifically assessing the Plan’s effect on non-mineral resources
in the Hills. In January 1993, BLM released a draft EIS in
which it analyzed, inter alia, the Hills’s religious significance to
various Native American tribes and whether its aquifers
provided potable water to local residents. Based on its analysis,
BLM proposed three alternatives for action, recommending as
its preferred alternative the Mount Royal/Manhattan Plan. After
receiving public comments of unequivocal opposition to the
proposed mining activity, however, BLM decided to reevaluate
the West HiLine Plan and, in particular, its recommendation to
keep the Hills open to mineral location and entry.
To protect the Hills while it reassessed the West HiLine
Plan, BLM filed with the DOI Assistant Secretary (Assistant
Secretary) a petition/application to withdraw 19,684.74 acres of
public mineral estate4 in the Hills from mineral location and
entry for 20 years pursuant to section 1714(c). On July 28,
land to mine valuable mineral deposits.” Black’s Law Dictionary (8th
ed. 2004).
4
Section 1719 indicates that a “mineral estate” is a property
interest in subsurface mineral deposits. See 43 U.S.C. § 1719(a) (“All
conveyances of title issued by the Secretary . . . shall reserve to the
United States all minerals in the lands . . . except that if the Secretary
makes the findings specified in subsection (b) of this section, the
minerals may then be conveyed together with the surface to the
prospective surface owner . . . .”) (emphasis added).
8
1993, the Assistant Secretary approved BLM’s petition and six
days later, BLM published notice of the withdrawal proposal in
the Federal Register (First Proposal), declaring that the proposed
withdrawal sought “to protect high value potential habitat for
reintroduction of endangered peregrine falcons, areas of
traditional religious importance to Native Americans, aquifers
that currently provide the only potable water in the area, and
seasonally important elk and deer habitat.” 58 Fed. Reg. 41,289,
41,290 (Aug. 3, 1993). Publication of the First Proposal
effected a two-year segregation period (First Segregation)
during which mineral location and entry in the Hills was
prohibited. Id.; see also 43 U.S.C. § 1714(b)(1). As a result, on
August 9, 1993, BLM suspended action on the Mount
Royal/Manhattan Plan to “reassess[] long-term management
options for the Sweet Grass Hills through preparation of an
amendment to the [West HiLine Plan],” Letter from David L.
Mari to Andrew Carstensen, Manhattan Minerals (US) Ltd. &
Ernest K. Lehmann (Aug. 9, 1993), reprinted in JA at 305, and
five weeks later, Manhattan withdrew from the joint venture
with Mount Royal.
On August 26, 1993, BLM published notice of its intent to
issue an amended West HiLine Plan and EIS (Amendment/EIS)
in order “to address the proposed withdrawal” which was “not
in conformance with the [RODs] for the [West HiLine Plan]”
because the RODs permitted mineral location and entry. 58 Fed.
Reg. 45,117, 45,117 (Aug. 26, 1993).5 The amendment process
5
Pursuant to FLPMA’s implementing regulations, “All . . .
resource management authorizations and actions . . . shall conform to
[an] approved plan.” 43 C.F.R. § 1610.5-3(a). “If a proposed action
is not in conformance [with an approved plan], and warrants further
consideration before a plan revision is scheduled, such consideration
shall be through a plan amendment in accordance with the provisions
9
proceeded slowly and, in 1994, BLM became concerned that it
could not complete the Amendment/EIS before the First
Segregation terminated on August 2, 1995. It therefore sought
alternative means to protect the Hills while the Amendment/EIS
was pending. Initially, BLM considered attempting to withdraw
the Hills by, in effect, extending the First Segregation time limit
but DOI’s Assistant Solicitor, believing that such action would
violate FLPMA, instead recommended that BLM consider
petitioning for an emergency withdrawal6 or a withdrawal “in
aid of legislation.”7
On February 10, 1995, almost eighteen months after BLM
decided to amend the West HiLine Plan, it released its draft
Amendment/EIS to the public “address[ing] future management
options for land tenure adjustment, off-road vehicle use, oil and
gas leasing, and locatable mineral development for lands and
minerals.” 60 Fed. Reg. 8056, 8056 (Feb. 10, 1995). The
Amendment/EIS proposed four alternatives for locatable mineral
development in the Hills and recommended a 20-year
withdrawal from mineral location and entry of 6,328 acres of
of § 1610.5-5 of this title.” Id. § 1610.5-3(c). Section 1610.5-5
provides: “An amendment shall be initiated by . . . new or revised
policy, a change in circumstances or a proposed action that may result
in a change in the scope of resource uses or a change in the terms,
conditions and decisions of the approved plan.” Id. § 1610.5-5.
6
Section 1714(e) permits “emergency withdrawals” if “an
emergency situation exists and . . . extraordinary measures must be
taken to preserve values that would otherwise be lost.” 43 U.S.C.
§ 1714(e).
7
A withdrawal “in aid of legislation” is one “for a specific use then
under consideration by the Congress.” 43 U.S.C. § 1714(d)(3).
10
public mineral estate located in the ACEC portion of the Hills.
BLM scheduled public meetings and received written comments
regarding the draft Amendment/EIS.
But BLM determined it would be unable to complete the
Amendment/EIS before August 2, 1995; as a result, on February
17, 1995, it again published notice of its intent to amend the
West HiLine Plan, this time proposing an amendment and
environmental assessment (Amendment/EA) that addressed only
mineral withdrawal. BLM planned to complete the
Amendment/EA before the First Segregation expired on August
2, 1995, in order to stop mineral development and subsequently
to complete the Amendment/EIS on all remaining issues. On
May 11, 1995, it issued a draft Amendment/EA with two
alternatives for mineral development, recommending a
withdrawal of 19,685 acres of public mineral estate in the Hills
(including the 6,328 acres in the ACEC) from mineral location
and entry for 20 years. BLM informed the public that the draft
Amendment/EA could be protested pursuant to 43 C.F.R.
§ 1610.5-28 and on June 14, 1995, Mount Royal did just that,
delaying the Amendment/EA’s implementation.
On June 29, 1995, BLM published a notice in the Federal
Register that the First Segregation was due to expire on August
2nd. 60 Fed. Reg. 33,845, 33,845 (June 29, 1995). Realizing
that it needed to take immediate action to protect the Hills, BLM
began preparing an application for an emergency three-year
withdrawal. In the meantime, the Congress became involved,
8
Section 1610.5-2(a) provides: “Any person who participated in
the planning process and has an interest which is or may be adversely
affected by the approval or amendment of a resource management plan
may protest such approval or amendment.” 43 C.F.R. § 1610.5-2(a).
The section also sets out the procedure for filing a protest.
11
when, on July 19, 1995, Congressman Pat Williams of Montana
introduced legislation to permanently prohibit mineral location
and entry “within the Bureau of Land Management’s Sweetgrass
Hills [ACEC] as identified in the West HiLine Resource
Management Plan in the State of Montana.” H.R. 2074, 104th
Cong. § 2 (1995), reprinted in JA at 401. The bill recited: “For
the purpose of conserving, protecting, and enhancing the
exceptional scenic, wildlife, water quality, and cultural
characteristics of lands along the Sweetgrass Hills in north
central Montana, there is hereby established the Sweetgrass
Hills Natural Area.”9 Id., JA at 400-01. In response to the
proposed legislation, BLM scrapped the emergency withdrawal
and instead petitioned for an application to withdraw 19,764.74
acres in the Hills for two years “in aid of legislation” pursuant
to section 1714(c). BLM published notice of the Secretary’s
approval of the petition in the Federal Register on July 28, 1995
(Second Proposal), declaring that the withdrawal proposal’s
“purpose” was to “preserve the status quo” and that its “specific
objective” was:
to protect high value potential habitat for reintroduction
of endangered peregrine falcons, areas of traditional
religious importance to Native Americans, aquifers that
currently provide the only potable water in the area, and
seasonally important elk and deer habitat, pending
consideration of proposed withdrawal legislation
introduced into the 104th Congress, 1st Session.
9
Apparently, the Congress took no further action on the bill. See
Thomas (The Library of Congress), http://thomas.loc.gov/ (last visited
Nov. 28, 2006) (stating “Last Major Action” taken on bill was DOI
request for comment on July 25, 1995).
12
60 Fed. Reg. 38,852, 38,853 (July 28, 1995). The publication of
the Second Proposal effected a second two-year segregation
from mineral location and entry in the specified acreage of the
Hills (Second Segregation). On August 2, 1995, BLM withdrew
the Amendment/EA, stating that it did “not consider all relevant
alternatives.” Memorandum from Tom Walker, Acting
Assistant Director, Resource Assessment & Planning, to State
Director, Montana (Aug. 2, 1995), reprinted in Supplemental
Joint Appendix (Supp. JA) at 3.
Also in early August 1995, Mount Royal located six mining
claims within the segregated area, and by September 15, 1995,
the Woods family also located one mining claim within the
segregated area. Both parties recorded the claims and paid the
necessary fees but BLM declared all seven claims null and void
ab initio because they had been located on land included in the
Second Segregation. See IBLA 96-77; IBLA 96-112. In a
consolidated appeal, IBLA affirmed BLM’s declarations. See
Mount Royal Joint Venture, 144 IBLA 277 (June 11, 1998).
In May 1996, BLM issued its final Amendment/EIS to the
West HiLine Plan. BLM considered four alternatives,
recommending that the Secretary withdraw from mineral
location and entry 19,765 acres of public mineral estate in the
Hills for 20 years. On January 30, 1997, BLM issued a ROD
that approved withdrawal of 19,685 acres consistent with the
First Proposal, stating, “A petition/application for withdrawal of
the other 80 acres of public minerals will be submitted when
necessary.” Record of Decision and Resource Management Plan
Summary for the approval of the Sweet Grass Hills Resource
Management Plan Amendment and Environmental Impact
Statement 1 (Jan. 1997), reprinted in JA at 633. Two months
later, the Secretary issued PLO 7254, which withdrew from
mineral entry and location 19,685 acres in the Hills for 20 years.
13
On October 15, 1999, Mount Royal and the Woods family
filed suit in the district court challenging the Second Segregation
and PLO 7254. The appellants and DOI both filed motions for
summary judgment. The district court granted DOI’s motion,
Mount Royal Joint Venture v. Babbitt, No. 1:99cv02728 (D.D.C.
filed Aug. 26, 2005), and this appeal followed.
II.
In reviewing de novo the district court’s grant of summary
judgment on DOI’s administrative decisions, we directly review
those decisions. Castlewood Prods., LLC v. Norton, 365 F.3d
1076, 1082 (D.C. Cir. 2004). Under the Administrative
Procedure Act (APA), 5 U.S.C. §§ 701-06, we must affirm an
agency’s action unless it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Id.
§ 706(2)(A). “The scope of review under the ‘arbitrary and
capricious’ standard is narrow and a court is not to substitute its
judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Rather,
we will reverse an agency decision only if “the agency has relied
on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not
be ascribed to a difference in view or the product of agency
expertise.” Id.
A. The Second Segregation
Following the Secretary’s approval of its July 15, 1993
withdrawal petition, BLM, on August 3, 1993, published notice
in the Federal Register of its proposal to withdraw 19,684.74
acres of public mineral estate located in the Hills for 20 years
“to protect high value potential habitat for reintroduction of
endangered peregrine falcons, areas of traditional religious
14
importance to Native Americans, aquifers that currently provide
the only potable water in the area, and seasonally important elk
and deer habitat,” 58 Fed. Reg. at 41,290, thus commencing the
First Segregation. On July 28, 1995, after the Secretary
approved its July 24th withdrawal petition and before the
expiration of the First Segregation (on August 2, 1995), BLM
published notice in the Federal Register of its proposal to
withdraw 19,764.74 acres of public mineral estate located in the
Hills for two years to “preserve the status quo” and to protect the
same resource uses and values “pending consideration of
proposed withdrawal legislation introduced into the 104th
Congress, 1st Session,” 60 Fed. Reg. at 33,853, thus
commencing the Second Segregation. In upholding the
Secretary’s approval of two consecutive withdrawal petitions
which triggered two consecutive segregation periods, the IBLA
interpreted FLPMA as permitting (1) consecutive segregations
initiated by withdrawal proposals with different stated purposes
and (2) withdrawal of a land tract aggregating 5,000 acres or
more for the purpose of aiding legislation. Mount Royal Joint
Venture, 144 IBLA at 281. The IBLA also upheld the Second
Segregation because the Second Proposal—which resulted in the
Second Segregation—“was not identical” to the First Proposal
in that the First Proposal sought “to protect the unique resources
within the Sweet Grass Hills ACEC” with a 20-year withdrawal
and the Second Proposal “was in aid of recently introduced
Congressional legislation designed to protect the same
resources” by means of a two-year withdrawal only. Id.
The appellants assert that approval of consecutive
withdrawal petitions (i.e. consecutive proposals)—whether with
identical or with ostensibly different purposes—contravenes
FLPMA’s purpose to limit a segregation to two years,
Appellants’ Br. at 17 (citing Public Land Law Review
15
Commission, One Third of the Nation’s Land 56 (1970));10 21.
Alternatively, they contend that even if the statute permits
consecutive proposals with genuinely different purposes, the
First and Second Proposals are “identical” in that the Second
Proposal seeks “to preserve the status quo,” Appellants’ Br. at
20-21, and, under section 1714(c) and (d), the Secretary may not
withdraw a land tract aggregating more than 5,000 acres “in aid
of legislation.” Id. at 23-24. Finally, the appellants argue that
even if FLPMA permits a second segregation “in aid of
legislation,” the IBLA’s decision upholding the Second
Segregation was arbitrary and capricious because Congressman
Williams’s proposed legislation “was introduced simply to
provide the BLM with an excuse to unlawfully extend the two-
year segregation period.” Id. at 27.
In reviewing an agency’s interpretation of the laws it
administers, we apply the principles of Chevron U.S.A. Inc. v.
Natural Resource Defense Council, Inc., 467 U.S. 837 (1984).
First, we analyze the statute applying customary rules of
statutory interpretation. Id. at 843. “If the intent of Congress is
clear, that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed intent
of Congress.” Id. at 842-43. If we conclude that “the statute is
10
In 1964, the Congress created the Public Land Law Review
Commission (PLLRC) “to study existing laws and procedures relating
to the administration of the public lands of the United States.” Pub.
L. No. 88-606, § 2, 78 Stat. 982 (1964). In 1970, the PLLRC
submitted its findings to the Congress in a report entitled, “One Third
of the Nation’s Land.” PLLRC, One Third of the Nation’s Land, iii
(1970). The Congress enacted FLPMA six years later. See Lujan v.
Nat’l Wildlife Fed’n, 497 U.S. 871, 876-77 (1990) (outlining history
of public land management and describing PLLRC and subsequent
enactment of FLPMA).
16
silent or ambiguous with respect to the specific issue,” id. at
843, however, we must next determine the deference, if any, we
owe the agency’s interpretation of the statute, United States v.
Mead Corp., 533 U.S. 218 (2001). If the agency enunciates its
interpretation through notice-and-comment rule-making or
formal adjudication, we give the agency’s interpretation
Chevron deference. Id. at 230-31. That is, we determine
whether its interpretation is “permissible” or “reasonable,”
Chevron, 467 U.S. at 843, 844, giving “controlling weight” to
the agency’s interpretation unless it is “arbitrary, capricious, or
manifestly contrary to the statute,” id. at 844. On the other
hand, if the agency enunciates its interpretation through informal
action that lacks the force of law, we accept the agency’s
interpretation only if it is persuasive. Mead, 533 U.S. at 235
(citing Christensen v. Harris County, 529 U.S. 576, 587 (2000);
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
Section 1714(b) is silent regarding consecutive segregations
and, because the IBLA hearing constitutes a formal agency
adjudication, we give its interpretation of section 1714(b)
Chevron II deference.11 See, e.g., INS v. Aguirre-Aguirre, 526
11
Because Mount Royal and the Woods family challenge the
IBLA’s voiding of their mining claims rather than the Secretary’s
approval of the second withdrawal petition, we analyze the IBLA’s
decision in order to discern DOI’s interpretation of FLPMA. If
instead we analyzed the Secretary’s decision to approve the second
withdrawal petition and thereby initiate the Second Segregation,
however, it would not affect our Chevron analysis. While the
Secretary’s approval does not constitute formal adjudication or notice-
and-comment rule-making, it merits Chevron deference because the
Secretary acted with the force of law. See Pharm. Research & Mfrs.
of Am. v. Thompson, 362 F.3d 817, 821-22 (D.C. Cir. 2004). “[T]he
Congress expressly conferred on the Secretary authority” to approve
17
U.S. 415, 424-25 (1999). Reviewing under Chevron II the
IBLA’s interpretation of section 1714(b) as authorizing the
Secretary to approve consecutive withdrawal petitions with
different stated purposes thereby triggering consecutive two-
year segregation periods, we believe its interpretation is both
“reasonable” and “permissible.” Section 1714(b) does not
prohibit consecutive withdrawal proposals with different stated
purposes. Moreover, contrary to the appellants’ argument,
permitting such proposals does not undermine FLPMA’s two-
year cap on segregations. A consecutive withdrawal proposal
with a different stated purpose neither renews a pending
proposal nor extends a segregation period beyond two years.
Rather, it responds to new developments, e.g., the introduction
of legislation regarding the tract or the discovery of additional
resource uses or values, and, correspondingly, the resulting
segregation period gives the Secretary time to evaluate whether
the withdrawal should be modified. See H.R. Rep. No. 94-1163,
at 10 (1976) (“[FLPMA] specifically grants the Secretary the
authority, by regulation, to provide procedures (segregation of
the lands) for protection of values in lands from nonconforming
uses and for other purposes while he is considering their
possible withdrawal.”).
Next, the appellants argue that because section 1714(d)
expressly permits a withdrawal aggregating fewer than 5,000
acres “to preserve [a land] tract for a specific use then under
consideration by the Congress” and section 1714(c) does not
expressly permit a withdrawal aggregating more than 5,000
a withdrawal petition and thereby initiate a segregation period under
section 1714(b) and “[t]hrough this express delegation of specific
interpretive authority, the Congress manifested its intent that the
Secretary’s determinations . . . should have the force of law.” Id. at
822 (internal quotation omitted).
18
acres for that purpose, a section 1714(c) withdrawal in aid of
legislation is unauthorized pursuant to the rule of statutory
construction that expressio unius est exclusio alterius (the
“mention of one thing implies the exclusion of another thing”).
Halverson v. Slater, 206 F.3d 1205, 1207 (D.C. Cir. 2000)
(internal quotations omitted). Unlike subsection (d), however,
subsection (c) permits the Congress to veto the Secretary’s
withdrawal decision with respect to a land tract aggregating
5,000 acres or more irrespective of purpose. Specifically, the
Secretary must notify the Congress of the withdrawal and
“submit a report addressing the twelve issues set forth in
subsection (c)(2),” New Mexico, 969 F.2d at 1136 (citing 43
U.S.C. § 1714(c)), including “an analysis of the manner in
which existing and potential resource uses are incompatible with
or in conflict with the proposed use,” 43 U.S.C. § 1714(c)(2)(4).
The Congress may then nullify the withdrawal by adopting a
concurrent resolution disapproving the Secretary’s decision. Id.
§ 1714(c). Because a withdrawal aggregating 5,000 acres or
more is subject to congressional oversight, FLPMA permits the
Secretary to withdraw such a land tract for any purpose so long
as the Congress does not disapprove. See Indep. Ins. Agents of
Am., Inc. v. Hawke, 211 F.3d 638, 644 (D.C. Cir. 2000) (“[I]f
there are other reasonable explanations for an omission in a
statute, expressio unius may not be a useful tool.”).
Finally, the IBLA’s conclusion that the Second Proposal
“was not identical to,” Mount Royal Joint Venture, 144 IBLA at
281, the First Proposal because the Second Proposal was in fact
“in aid of legislation” pursuant to section 1714(c) was neither
arbitrary nor capricious. BLM first petitioned to withdraw
19,684.74 acres of public mineral estate for the statutory 20-year
maximum to protect the Hills’s non-mineral resource uses and
values. The Secretary’s approval of BLM’s withdrawal petition
began a two-year segregation period during which DOI was to
19
take the necessary administrative steps to permit the Secretary
to withdraw the tract. As the two-year period was nearing
expiration, however, it became apparent the Secretary could not
withdraw the land by that date. Congressman Williams, who
had been lobbying to protect the Hills’s non-mineral resources
for at least two years, Letter from Pat Williams to Bruce Babbitt,
Secretary of the Interior (June 1, 1993), reprinted in JA at 267-
68, introduced legislation to permanently prohibit mineral
location and entry within the ACEC portion of the Hills. At that
point, BLM petitioned for a shorter, two-year withdrawal to
maintain “the status quo” in the Hills “pending” the Congress’s
consideration of a permanent prohibition on mining. 60 Fed.
Reg. at 38,853. That is, BLM’s Second Proposal differed from
its First Proposal—the Second sought to assist the legislative
attempt to prohibit mineral location and entry in the Hills
permanently rather than to withdraw the Hills for only 20 years.
Congressman Williams’s introduction of withdrawal legislation
promoted FLPMA’s purpose by asserting the Congress’s power
to manage federal lands. In enacting FLPMA, the Congress
delegated to the Secretary considerable withdrawal authority,
see 43 U.S.C. § 1714, but it also reaffirmed its own final
authority over the withdrawal of public lands, see id.
§ 1701(a)(4). In the absence of a constitutional challenge, we
will not interfere with congressional actions expressly
authorized by statute.
Because we affirm the IBLA’s decision upholding the
Second Segregation, we also affirm its decision declaring the
appellants’ mining claims null and void ab initio. See Dean
Staton, 136 IBLA 161, 164 (July 25, 1996) (“[M]ining claims
located on lands not open to appropriation are null and void ab
initio.”) (citing Shiny Rock Mining Corp. v. United States, 825
F.2d 216, 219 (9th Cir. 1987) (“[A] mining claim is void ab
initio when it is located on land which at the date of location
20
was included in an application for withdrawal which has been
noted on the land records.”)). Accordingly, we affirm the grant
of summary judgment to DOI on this claim.
B. PLO 7254
The Secretary must manage the public lands under
“principles of multiple use and sustained yield.” 43 U.S.C.
§ 1732(a). “‘Multiple use management’ is a deceptively simple
term that describes the enormously complicated task of striking
a balance among the many competing uses to which land can be
put, ‘including, but not limited to, recreation, range, timber,
minerals, watershed, wildlife and fish, and [uses serving] natural
scenic, scientific and historical values.’” Norton v. S. Utah
Wilderness Alliance, 542 U.S. 55, 58 (2004) (quoting 43 U.S.C.
§ 1702(c)) (alteration in original). “Sustained yield” requires the
Secretary “to control depleting uses over time, so as to ensure a
high level of valuable uses in the future.” Id. (citing 43 U.S.C.
§ 1702(h)).
Mount Royal and the Woods family argue that the Secretary
did not utilize “multiple use” management principles in issuing
PLO 7254 and thus his decision was arbitrary and capricious.
They contend that DOI had developed an “anti-mining agenda,”
Appellants’ Br. at 41, as early as 1993 and that the decision to
issue PLO 7254 was “predetermined,” id. at 30-34. In support
of their argument, the appellants suggest that the First Proposal
represented a “complete ‘about face,’” id. at 31, from previous
BLM policy regarding the Hills and that, by proposing a
withdrawal that did not conform to the West HiLine Plan,12
BLM “‘put the cart before the horse,’” id. at 32, in violation of
12
As noted earlier, under the original West HiLine Plan and the
accompanying ROD, mineral location and entry were permitted in the
Hills. See supra p. 5.
21
FLPMA and implementing regulations. Mount Royal and the
Woods family also contend that the withdrawal violates the
Establishment Clause of the First Amendment to the United
States Constitution by seeking to protect an area of religious
significance to Native Americans at the expense of mineral
development.
In attempting to make the First Proposal conform to the
West HiLine Plan, BLM drafted the Amendment/EIS utilizing
principles of “multiple use management.” BLM considered four
alternatives for managing the Hills. After analyzing the
“pertinent natural resources and economic and social conditions
found in the study area,” Final Sweet Grass Hills Resource
Management Plan Amendment and Environmental Impact
Statement 13, reprinted in JA at 485, the “environmental, social,
and economic consequences of implementing the [four]
alternatives,” id. at 31, JA at 502, and feedback from “interest
groups and individuals[,] . . . Federal, state, local agencies and
Native American tribes,” id. at 56, JA at 527, it recommended
withdrawing the entire public mineral estate. Subsequently, in
its 1997 ROD, BLM approved the “preferred alternative”
contained in the Amendment/EIS. JA at 631.
Consistent with BLM’s recommendations, the Secretary
issued PLO 7254 “to protect unique resources within the Sweet
Grass Hills [ACEC] and surrounding areas,” including “areas of
traditional spiritual importance to Native Americans, habitat
which has high potential for reintroduction of the endangered
peregrine falcon, seasonally important elk and deer habitat, and
aquifers that provide potable water to local residents.”
Notification to Congress as Required by FLPMA 204(c)(2),
Sweet Grass Hills 20-Year Withdrawal 1, reprinted in JA at 654.
In the statutorily-required “Notification to Congress,” the
Secretary addressed all twelve factors listed in 43 U.S.C.
§ 1714(c)(2), explaining in detail the proposed withdrawal’s
22
effects on current natural resource uses in the Hills, see id.
§ 1714(c)(2)(2), its effects on current land users, see id.
§ 1714(c)(2)(3), its “incompatib[ility]” with current land uses,
see id. § 1714(c)(2)(4), and its effect on state and local
government interests and the regional economy, see id.
§ 1714(c)(2)(8). Most important, after receiving the Secretary’s
notification, the Congress chose not to exercise its reserved
power under FLPMA to veto the withdrawal. That is, the
Congress did not adopt a concurrent resolution disapproving the
withdrawal, id. § 1714(c), but instead let it stand.
With respect to the appellants’ argument that the decision in
PLO 7254 was “predetermined,” the record demonstrates that,
while the 1988 West HiLine Plan and subsequent draft EIS
regarding the Mount Royal/Manhattan Plan recommended
allowing mineral location and entry in the Hills, strong public
opposition to mining in the wake of the draft EIS’s release rather
than any BLM “anti-mining agenda” influenced its decision to
consider a withdrawal. BLM’s 1993 Application for
Withdrawal concludes:
[T]he public was not as cognizant of the significance of
the conflict between hardrock mining and the ACEC
designation until recently when exploration and possible
mining was presented as a reality. Similar activity in
other areas of Montana contributed to this public
awareness. As a result of these most recent public
inputs, local residents, as well as Native Americans,
have provided new information concerning the
importance of the resource values, particularly cultural
and hydrologic.
Petition/Application for Withdrawal of Sweet Grass Hills 12
(July 15, 1993), reprinted in JA at 298. Furthermore, the
appellants ignore FLPMA’s implementing regulations which
23
expressly allow for the simultaneous issuance of a withdrawal
proposal and preparation of a West HiLine Plan amendment to
conform to the proposal. See 43 C.F.R. § 1610.5-5 (“If the
amendment is being considered in response to a specific
proposal, the analysis required for the proposal and for the
amendment may occur simultaneously.”).
Finally, PLO 7254 does not violate the Establishment
Clause. Supreme Court precedent makes clear that government
action conforms to the Establishment Clause if: (1) the action
has a “secular . . . purpose,” (2) the “primary effect” of the
action “neither advances nor inhibits religion” and (3) the action
does “not foster an excessive government entanglement with
religion.” Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)
(internal citation and quotation omitted). The Secretary
enunciated several secular purposes for withdrawing the Hills,
including protection of aquifers and the environment.
Furthermore, PLO 7254 does not primarily affect religious
interests; on the contrary, it protects all non-mineral resources
in the Hills. Id. Finally, the land order does not foster excessive
government entanglement with religion because it neither
regulates religious practices nor increases Native American
influence over management of the Hills. See Appellee’s Br. at
46.
In sum, DOI followed FLPMA’s land management
guidelines in withdrawing 19,685 acres of public mineral estate
located in the Hills from mineral location and entry for 20 years
and, accordingly, its withdrawal decision contained in PLO 7254
is neither arbitrary nor capricious.
24
For the foregoing reasons, we affirm the district court’s grant
of summary judgment to the Department of the Interior.
So ordered.